Supreme Court declines 'boobies' appeal

The U.S. Supreme Court Monday rejected an appeal from Easton Area School District in its effort to prevent students from wearing "I (heart) boobies!" breast-cancer awareness bracelets.

SARAH W. WOJCIK

The U.S. Supreme Court Monday rejected an appeal from Easton Area School District in its effort to prevent students from wearing "I (heart) boobies!" breast-cancer awareness bracelets.

In deciding not to hear the case, the justices left in place a federal appeals court ruling from August striking down a ban on the bracelets.

The precedent set by the U.S. Court of Appeals for the Third Circuit — that the bracelets worn by students represent a protected form of free speech — applies to the states the court covers: Pennsylvania, New Jersey and Delaware.

The ban was put in place by the district, which says the breast-cancer awareness bracelets are lewd in their use of sexual innuendo.

The lower court sided with two former Easton Area Middle School students who sued the district in 2010 with the help of the American Civil Liberties Union. Easton is one of several school districts around the country to ban the bracelets, which are distributed by the nonprofit Keep A Breast Foundation of Carlsbad, Calif.

The American Civil Liberties Union sued the school district on behalf of Easton Area Middle School students Kayla Martinez, then 12, and Brianna Hawk, then 13, who wore the bracelets in October 2010 despite a schoolwide ban. The girls were suspended from school.

"I am happy we won this case, because it's important that students have the right to stand up for a cause and try to make a difference," Hawk said in a statement from the ACLU. "We just wanted to raise awareness about breast cancer."

Noting that very few cases reach the Supreme Court level, John Freund, the attorney representing the school district, said he was disappointed nonetheless.

"Local school authorities need the ability to enforce dress codes and maintain reasonable decorum of the manner of expression in an educational environment, while respecting the legitimate rights of students to express themselves," Freund said.

He said the Third Circuit Court's decision departed from previous Supreme Court precedent on the subject, which likely means a similar case will be heard sometime in the future.

"Indications are that the Supreme Court will one day revisit that question," Freund wrote. "Unfortunately, it will take more lawsuits, more attorneys' fees and more chaos in the classroom before we get the answer."

Mary Catherine Roper, an ACLU attorney for the plaintiffs in the case, said the girls have worn the bracelets in question every day since the case began in 2010.

She said today's announcement was welcome news. The Third Circuit Court's decision opened the door to protecting student speech on political and social issues — even if that language is sometimes considered lewd, according to Roper.

That middle school students were the ones who decided to speak out and fight for the issue is a lesson in itself, she said.

"They have learned that you need to stand up for yourself — even if that means you're going to get in some trouble," said Roper. "It was something the girls learned and something their mothers supported them in.

"They know to listen to grownups, but now they also know that sometimes they're not right and sometimes you need to say so. Frankly, I think that's a lesson every kid should know."

In a statement, Martinez said she learned that age is not a barrier to speaking out and making a difference.

"This whole experience has taught me that speaking up about issues that really matter to young people really makes a difference, even if you're only in seventh grade," she stated, according an ACLU news release.

Reggie Shuford, executive director of the ACLU of Pennsylvania, said in a statement that the decision is an important milestone in First Amendment rights for students.

"The First Amendment protects schools as a space where students are free to discuss important issues like breast cancer and talk about their bodies in positive terms," said Shuford. "The court's decision today is an important reminder to school administrators that they can't punish students for speaking out just because their speech might be uncomfortable or misunderstood."

In the end, Freund said he believes the Easton district did the best it could to try to keep inappropriate distractions out of the classroom.

"Let me say that Easton fought the good fight for itself and other public schools to try to keep the focus on education and away from off-color distractions that have no place, especially in elementary and middle schools," Freund said.

Express-Times Archives Editor K.J. Frantz and The Associated Press contributed to this report.

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